Davis & Kuelthau, S.C., by AttorneyDaniel G. Vliet, Suite 1400, 111 East Kilbourn Avenue,
Milwaukee, Wisconsin 53202-6613, on behalf of Central High School District of Westosha,
and
Gerald Sorensen, District Administrator.

ORDER AFFIRMING AND MODIFYING
EXAMINER'S FINDINGS OF FACT

AND AFFIRMING IN PART AND REVERSING IN
PART

EXAMINER'S CONCLUSIONS OF LAW AND
ORDER

On May 12, 2000, Examiner Karen J. Mawhinney issued Findings of Fact,
Conclusions of
Law and Order with Accompanying Memorandum in the above matter wherein she concluded
that
Respondents had not committed prohibited practices within the meaning of Secs.
111.70(3)(a)1 or
3, Stats., by taking certain actions affecting Complainant Teresa D. Watson.
Therefore, she dismissed
the complaint.

Complainants timely filed a petition with the Wisconsin Employment Relations
Commission
seeking review of that portion of the Examiner decision which dismissed an alleged violation
of Sec.
111.70(3)(a)1, Stats.

The parties thereafter filed written argument in support of and in opposition to the
petition,
the last of which was received July 13, 2000.

Dec. No. 29671-C

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Dec. No. 29671-C

Having reviewed the record and being fully advised in the premises, we make and
issue the
following

ORDER

A. Examiner Findings of Fact 1-6 are affirmed.

B. Examiner Finding of Fact 7 is modified as follows:

7. On December 18, 1999, Potter
Sorensen sent Watson and Curavo a memorandum
which stated in part:

I am not sure if we discussed working hours in the new
office area when it is
completed or not, but I feel it is necessary that both of you have the same hours.
The hours of work will be from 7:15 a.m. until 3:45 p.m. This will take effect when
the move is made.

C. Examiner Findings of Fact 8-22 are affirmed.

D. Examiner Conclusions of Law are affirmed in part and reversed
in part as follows:

1. Respondent Central High
School District of Westosha did not violate Secs.
111.70(3)(a)1 or 3, Stats., by changing the hours of work for Teresa D. Watson
during the
school year and the summer, by not paying her for days not worked over the winter holiday
break, by requiring her to get permission to work on snow days, by reducing her summer
hours, or by not giving her a paid lunch period in the summer.

2. Sorensen's remark to
Complainant Watson that there would be no more
"perks" because of her "union philosophy" had a reasonable tendency to interfere with
employes' exercise of rights guaranteed by Sec. 111.70(2), Stats. Therefore, Respondent
Central High School District of Westosha thereby violated Sec. 111.70(3)(a)1, Stats.

E. Examiner's Order is affirmed in part and reversed in part as follows:

The complaint is dismissed except as to the violation of
Sec. 111.70(3)(a)1, Stats.,
found in Conclusion of Law 2.

To remedy the violation of law
found in Conclusion of Law 2, Respondent Central
High School District of Westosha, its officers and

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Dec. No. 29671-C

agents, shall immediately take the
following action which the Commission finds will effectuate
the purposes of the Municipal Employment Relations Act:

1. Cease and desist from
interfering with, restraining and coercing employes in
the exercise of rights guaranteed by Sec. 111.70(2), Stats.

2. Take the following
affirmative action:

A. Notify all of its
employes represented for the purposes of collective
bargaining by Central High of Westosha ESP by posting, in
conspicuous places on its premises where said employes work, copies
of the Notice attached hereto and marked Appendix "A". The Notice
shall be signed by an official of the District and shall remain posted for
30 days. Reasonable steps shall be taken to ensure that said notices
are not altered, defaced or covered by other material.

B. Notify the Wisconsin
Employment Relations Commission in writing
within 20 days of the date of this Order as to what steps have been
taken to comply herewith.

Given under our hands and seal at the City of Madison, Wisconsin this
22nd day of August, 2000.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Meier, Chairperson

Henry Hempe, Commissioner

Paul A.
Hahn, Commissioner

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Dec. No. 29671-C

APPENDIX "A"

NOTICE TO ALL EMPLOYES

Pursuant to an order of the Wisconsin Employment Relations Commission, and in
order to
effectuate the policies of the Municipal Employment Relations Act, we hereby notify our
employes
that:

1. WE WILL NOT interfere with, restrain or coerce employes in the exercise of
rights
guaranteed by Sec. 111.70(2), Stats., by making threats or promising benefits.

Central High School District of Westosha Date

THIS NOTICE MUST REMAIN POSTED FOR THIRTY (30) DAYS FROM THE
DATE
HEREOF AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.

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Dec. No. 29671-C

MEMORANDUM ACCOMPANYING ORDER
AFFIRMING AND MODIFYING
EXAMINER'S FINDINGS OF FACT AND AFFIRMING IN PART AND REVERSING IN
PART EXAMINER'S CONCLUSIONS OF LAW AND ORDER

BACKGROUND

The Pleadings

In their complaint, Complainants allege that Respondents committed violations of
Sec. 111.70
(3)(a)1 and 3, Stats., by taking certain actions toward Complainant Watson and by advising
Watson
that "perks" were ending because of her "union philosophy."

Respondents filed an answer denying that any violations had been committed.

The Examiner's Decision

The Examiner concluded that no violations of Secs. 111.70(3)(a)1 or 3, Stats., had
been
committed and dismissed the complaint.

As to the alleged violations of Sec. 111.70(3)(a)3, Stats., the Examiner determined
that
Respondents' conduct toward Watson was not based in whole or in part on hostility toward
Watson's
protected concerted activity.

As to the alleged violation of Sec. 111.70(3)(a)1, Stats., regarding "perks," the
Examiner
reasoned as follows:

The Respondents did not interfere with Watson's Sec.
111.70(2)
rights or commit a
prohibited practice under Sec. 111.70(3)(a)1, Stats. The Association has argued that the
Respondents sent an unmistakable message to members of the Association that it was not
hesitant
to inflict serious hardship in order to prevent effective representation. However, Watson was
not
engaged in representing bargaining unit members but rather was engaged in securing
additional
benefits outside of the contract for herself in her dealings with the District. The conduct
complained
of did not have a reasonable tendency to interfere with rights protected by MERA.
Moreover, the
District had valid business reasons for its conduct that would outweigh the employe interests
being
asserted here.

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Dec. No. 29671-C

POSITIONS OF THE PARTIES ON
REVIEW

Complainants

Complainants' petition for review is limited to the Examiner's allegedly erroneous
dismissal
of the Sec. 111.70(3)(a)1, Stats., allegation regarding the end of "perks" and to the
Examiner's
allegedly erroneous factual determination that Potter made the decision to change Watson's
regular
school year hours.

As to the end of "perks" allegation, Complainants assert that Watson and another
employe
(Cuervo) engaged in protected concerted activity when they sought pay for a 30 minute
meeting with
District Administrator Sorensen in September 1998. Complainants contend that when
Sorensen cited
the September 1998 pay request as exhibiting Watson's "union philosophy" and advised
Watson that
his distaste for the "union philosophy" meant he was ending "perks" such as pay for holiday
time not
worked, it must be concluded that Sorensen's remarks had a reasonable tendency to chill and
thus
interfere with employes' exercise of statutorily protected rights.

Complainants argue that it is irrelevant whether or not Watson had any contractual
right to
the "perks" in question. Even assuming she had no such right, Complainants contend that by
articulating an illegal reason for the end of the "perks," Respondents violated
Sec. 111.70(3)(a)1,
Stats. Given the foregoing, Complainants allege that the Respondents' "valid business
reasons"
defense is irrelevant to these proceedings because Respondent Sorensen justified his action
with an
illegal rather than a legitimate rationale.

Turning to the factual question as to whether Potter or Sorensen was the
decision-maker
when altering Watson's hours, Complainants argue that although Potter played a role in
communicating the decision to Watson, the record establishes that Sorensen was the
decision-maker.

To remedy the violation of Sec. 111.70(3)(a)1, Stats., Complainants ask that
Respondents
be ordered to cease and desist from such conduct and to post a notice.

Respondents

Respondents argue that they did not violate Sec. 111.70(3)(a)1, Stats. When
Respondent
Sorensen advised Complainant Watson that the "perks" were ending due to her "union
philosophy."
Thus, Respondents contend the Examiner's dismissal of this allegation should be affirmed.
Respondents further assert that the Examiner correctly concluded that it was Potter who
decided to
change Watson's regular work hours.

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Dec. No. 29671-C

Respondents allege that no violation of Sec. 111.70(3)(a)1, Stats., can be found
because
Watson did not engage in concerted activity when seeking pay for the September 1998
meeting.
Although Respondents acknowledge that Watson and another unit employe both turned in a
request
for payment, Respondents contend the activity is nonetheless not concerted because the pay
requests
were on separate time cards. Respondents further argue that Sorensen's remark did not have
a
reasonable tendency to interfere with the exercise of protected rights because there was no
entitlement to payment under the terms of the existing contract.

If the Commission concludes that Sorensen's remark to Watson did have a reasonable
tendency to interfere with Watson's exercise of her statutory rights, Respondents assert that
no
violation of Sec. 111.70(3)(a)1, Stats., should be found because they had a valid business
reason for
denial of the pay request.

Given all of the foregoing, Respondents ask that the Examiner be affirmed in all
respects.

DISCUSSION

Overview of Issues on Review and Our Decision

When a petition for review is filed, the entire Examiner decision is before us for
affirmance,
modification or reversal. See Secs. 111.07(5) and 111.70(4)(a), Stats.; Green County, Dec.
No.
26798-B (WERC, 7/92). Thus, although the Complainants only seek review of the
Examiner's
dismissal of a Sec. 111.70(3)(a)1, Stats., allegation and of a specific factual determination,
we are
obligated to and have considered all aspects of the Examiner's decision during our review.
Having
done so, we affirm her dismissal of the Sec. 111.70(3)(a)3, Stats., allegations --
although we find that
issue to be a closer question than she did.

As to the Sec. 111.70(3)(a)1, Stats., issue specifically presented in the petition for
review, we
reverse the Examiner because, as more fully discussed below, we think it clear that
Sorensen's remark
to Watson had a reasonable tendency to chill Watson's future support of her union.

As to the question presented on review regarding which management employe
decided
to
change Watson's regular hours of work, we conclude, as more fully discussed below, that
both
Principal Potter and District Administrator Sorensen played a role in this decision.

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Dec. No. 29671-C

Analysis of Alleged Violation of Sec. 111.70(3)(a)1,
Stats.

Section 111.70(3)(a)1, Stats., makes it a prohibited practice for a municipal
employer:

1. To interfere with, restrain or coerce municipal
employes in the exercise of their rights
guaranteed in sub. (2).

(2) RIGHTS OF MUNICIPAL EMPLOYES. Municipal
employes shall have the right
of self-organization, and the right to form, join or assist labor organizations, to bargain
collectively
through representatives of their own choosing, and to engage in lawful, concerted activities
for the
purpose of collective bargaining or other mutual aid or protection.

As the text of Sec. 111.70(2), Stats., reflects, the employe rights established include
". . . the
right to form, join or assist labor organizations. . . ." As also reflected by the language of
Sec.
111.70(2), Stats., this right includes the decision to "join" the Union as a member and/or to
generally
support or "assist" the Union.

Employer conduct which may have a reasonable tendency to interfere with an
employe's
exercise of Sec. 111.70(2) rights will generally not be found to violate
Sec. 111.70(3)(a)1, Stats., if
the employer has valid business reasons for its conduct. Cedar Grove-Belgium Area School
District, Dec. No. 25849-B (WERC, 5/91).

Here, the alleged violation of Sec. 111.70(3)(a)1, Stats., consists of Sorensen's
remark to
Watson that she would not receive any more "perks" because of the "union philosophy" she
exhibited
when asking to be paid for a 30 minute meeting in September 1998. We find this comment
ill-considered, at best. As argued by Complainants, we think it apparent that said remark
would have
a reasonable tendency to make an employe less likely to support Complainant Union ­
a right
guaranteed and protected by Sec. 111.70(2), Stats. Like the remark found violative of
Sec. 111.70(3)(a)1, Stats., in Beaver Dam Unified School District, supra, Sorensen's
comment
made a direct link between how Watson had been and would be treated and her support or
lack
thereof of a "union philosophy"/Complainant Union. Thus, we think it clear that the
Sorensen remark
violated Sec. 111.70(3)(a)1, Stats.

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Dec. No. 29671-C

In reaching this conclusion, we reject the assumption made by the Examiner and the
parties
that an individual employe must have personally exercised rights guaranteed by
Sec. 111.70(2), Stats.,
before a violation of Sec. 111.70(3)(a)1, Stats., can occur. As evidenced by WERC v.
Evansville,
supra, the Wisconsin Supreme Court established no such prerequisite. In Evansville, the
issue was
whether pre-representation election conduct of the employer violated Sec. 111.70(3)(a)1,
Stats.,
because it made employes less likely to vote for the union. The employer was not reacting
to past
employe exercise of Sec. 111.70(2) rights but rather attempting to influence future employe
decisions
as to whether to exercise such rights by voting for the union. The Court held that:

The WERC properly concluded, on the basis of sufficient
evidence, that the letter threatened
employees with the loss of benefits if they engaged in union activity.
As a consequence, this conduct
constituted a prohibited practice in violation of Sec. 111.70(3)(a)1, Stats., 1969. (emphasis
added)

Given the foregoing, the outcome of the debate between the parties as to whether
Watson was
or was not engaged in protected concerted activity when she asked for pay for the 30 minute
meeting
in September, 1998 is not determinative as to whether a Sec. 111.70(3)(a)1, Stats., violation
occurred. Assuming arguendo that Watson was not thereby engaged in
protected concerted activity,
a violation of Sec. 111.70(3)(a)1, Stats., nonetheless occurred because Sorensen's remark
had a
reasonable tendency to make an employe less likely to exercise protected concerted rights in
the
future.

By finding a violation of Sec. 111.70(3)(a)1, Stats., we also reject the Respondents'
argument
and the Examiner's view that because Complainant Watson may have had no contractual
right to the
"perks" in question, Respondents had a "valid business reason" for their conduct. As
persuasively
argued by Complainants, the "valid business reasons" defense has no application to the
remarks of
Sorensen. The question before us is not whether the end of the "perks" itself violated Sec.
111.70(3)(a)1, Stats., but rather whether Sorensen's linkage of the end of "perks" to "union
philosophy" violated Sec. 111.70(3)(a)1, Stats. There cannot be a "valid business reason"
for making
veiled threats which have a reasonable tendency to chill an employe's exercise of statutory
rights.

To remedy the violation of Sec. 111.70(3)(a)1, Stats., Complainants ask that
Respondents
be ordered to cease and desist from such conduct and to post an appropriate notice to
employes. We
find this remedy to be an appropriate one and have so ordered Respondents to comply
therewith.

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Dec. No. 29671-C

Analysis of Factual Issue

Complainants ask that we correct the Examiner's determination that Principal
Potter --not
District Administrator Sorensen -- altered Watson's regular school year work
schedule. As argued
by Complainants, Sorensen was the author of the December, 1998 memo announcing the new
hours
and we have corrected the Examiner's Finding of Fact 7 to reflect that fact. Complainants'
view that
Sorensen was the decision-maker is supported by his authorship of the memo and the memo
sentence
". . . but I feel it is necessary that both of you have the same hours." Sorensen did not
testify at the
hearing. Potter did testify and indicated that he was part of the discussion process that led to
the new
hours. Based on the forgoing, we conclude that both Sorensen and Potter played significant
roles
in the District's decision.